Badrilal v. State of M. P. — 1996 DIGILAW 489 (MP)

JUDGMENT 1. This appeal has been preferred under section 449 of Cr.P.C. against the order dt. 12.9.86 ordering recovery of amount of Rs. 5,000/- from the appellant/surety in M.J.C. No. 20/86 of the Court of IInd A.S.J. Mandsaur. 2. The facts leading to the present appeal are that, in S.T. No. 35/86 pending in the Court of IInd A.S.J. Mandsaur, the appellant Badrilal had stood surety and furnished surety bond for an amount of Rs. 10,000/- for accused/Ramchandra, s/o Nagjiram, in pursuance of the order dt. 30.5.85 of High Court, as would appear from the surety bond filed in the record of the lower Court. His surety bond was accepted by the Court of CJM, Mandsaur. By the said surety bond, the present appellant/surety had undertaken to keep the accused/Ramchandra present in the Court of J.M.F.C. Naraingarh and also in other Courts where the case may be transferred on 14.6.85 and thereafter on subsequent dates, till judgment. It is not in dispute that, the accused/Ramchandra for whom the present appellant stood surety did not appear in the Sessions Court on 15.4.86. Therefore, the bail bonds and personal bonds were ordered to be forfeited and notice was issued to the appellant/surety to show cause as to why the amount of bond may not be recovered from him. The appellant/surety filed his reply. After consideration of the reply and hearing the parties by the impugned order, the learned IInd A.S.J. Mandsaur ordered that an amount of Rs. 5,000/- may be recovered from the appellant/surety. 3. In the present appeal, it has been mainly urged on behalf of appellant/surety that, the bond was defective and was not in the proforma as prescribed by form No. 45 of Schedule II of Cr.P.C. It was also urged that, by the said bond the appellant/surety had undertaken to keep the accused/Ramchandra present in the Court of J.M.F.C. Naraingarh and in such Courts where the case may stand transferred. However, since the case was committed to the Court of Sessions, it cannot be deemed to have been transferred to that Court and therefore, the surety was not bound to keep the accused present in the Court of Sessions. It has also been urged that, the personal bond of the accused has not been forfeited and amount had not been recovered from him, therefore the appellant/surety cannot be made liable for the payment of amount of surety bond. It has also been urged that, the personal bond of the accused has not been forfeited and amount had not been recovered from him, therefore the appellant/surety cannot be made liable for the payment of amount of surety bond. It has also been urged that, the accused had undertaken to pay the amount to the Government, therefore, the Court of Sessions was not entitled to recover the amount. As against this, learned counsel for State has supported the impugned order and has urged that, the amount of bond could be realised under section 446 of the Cr.P.C. and that, there is no error in the impugned order. 4. As pointed out earlier, it is not disputed that, the appellant had stood surety for the accused/Ramchandra and had executed his surety bond, which is filed in the record of the Lower Court. That bond clearly indicates that, the appellant/surety had undertaken to keep the accused present in the Court of J.M.F.C. Naraingarh and in such other Courts where the case stands transferred. The contention that, the Court of Sessions was not a transferee Court cannot be accepted. It is clear from the terms of the bond that, the surety/appellant had undertaken to keep the accused present, not only in the Court of J.M.F.C. Naraingarh, but in any other Court where the case may be transferred and where the attendance of the accused would be required for answering the charge, till the date of decision. This term of personal bond clearly indicates that, there was an undertaking by the surety/appellant to produce and keep the accused present in the Court, where the trial and decision of the case was to take place, which presumably would cover the Court of Session which passed the impugned order. 5. No doubt surety bond is in the nature of an agreement and should be strictly construed, but the construction must not be so unduly strained so to defeat its essential purposes. From the reading of the surety bond executed by the surety/appellant, it would be clear that, he had undertaken to keep the accused present in the Court of J.M.F.C. Naraingarh and thereafter to such other Courts where the case may stand transferred for answering the charge, till decision. From the reading of the surety bond executed by the surety/appellant, it would be clear that, he had undertaken to keep the accused present in the Court of J.M.F.C. Naraingarh and thereafter to such other Courts where the case may stand transferred for answering the charge, till decision. A reasonable interpretation of the terms of above bond obviously covers the undertaking by the surety/appellant to keep the accused present also in the Court of Sessions, where the accused was to answer the charge and which Court was to pronounce the decision of the case, and where the case stood transferred on account of committal thereof. 6. The next submission of surety/appellant is that, the accused had not executed the personal bond and therefore, no recovery from the appellant/surety of the amount could be made. In this regard, learned counsel for appellant/surety has placed reliance on the case reported in (AIR 1963 Calcutta 309) Sailesh Chandra v. State, wherein it has been held that, a bond executed by the surety alone is not a bond within the terms of the Code of Criminal Procedure and therefore, it cannot legally be forfeited. 7. However, it may be noticed that in the case reported in ( AIR 1979 SC 1948 ) Ram Lal v. State of U.P., the above view of the Calcutta High Court, on which the learned counsel for the appellant has placed reliance, has not been approved and it has laid down that: "The undertaking of the surety to secure the attendance and presence of the accused was quite independent of the undertaking given by the accused to appear before the Court whenever called upon even if both the undertakings happened to be executed in the same document for the sake of convenience. Each undertaking being distinct could be separately enforced. It is true that before a person is released on bail he must execute a personal bond and, where necessary, sureties must also execute bonds. There can be no question of an accused being released on bail without his executing a personal bond. But it does not follow there from that if a person is released by mistake without his executing a personal bond the sureties are absolved from securing his attendance and appearance before the Court. There can be no question of an accused being released on bail without his executing a personal bond. But it does not follow there from that if a person is released by mistake without his executing a personal bond the sureties are absolved from securing his attendance and appearance before the Court. The responsibility of the surety arises from the execution of the surety bond by him and is not contingent upon execution of a personal bond by the accused. Nor is the liability to forfeiture of the bond executed by the surety contingent upon the execution and the liability to forfeiture of the personal bond executed by the accused." 8. Therefore, the above contention of the appellant in view of the dictum of law laid down by the Apex Court cannot be accepted. Moreover, it may be pointed out that from the record of the trial Court, it appears that the personal bond was executed by the accused and was also called by the Sessions Judge. Again, this objection as raised in this appeal on behalf of surety has not been raised before the trial Court in answer to the notice of show cause issued to the appellant by the trial Court. Therefore, the above contention of the appellant cannot be accepted on this count also. 9. It has next been contended on behalf of the appellant that, since the surety bond executed by the surety was not in the proforma as prescribed in Form No. 45 of Schedule II of the Code of Criminal Procedure, the same is not enforceable. 10. It may be pointed out that, various proformas are contained in Second Schedule of Cr.P.C. Section 476 of Cr.P.C. provides that the forms set forth in the Second Schedule may be used for the purposes mentioned therein, with such variations as the circumstances of each case require. It is therefore, clear from reading of section 476 of Cr.P.C. that, the prescribed forms may be used with appropriate variations as the circumstances of each case may require and therefore, strict adherence to the forms as prescribed is not obligatory. Therefore, the prescribed proforma of Second Schedule of Cr.P.C. should be preferably used, as far as possible. It is therefore, clear from reading of section 476 of Cr.P.C. that, the prescribed forms may be used with appropriate variations as the circumstances of each case may require and therefore, strict adherence to the forms as prescribed is not obligatory. Therefore, the prescribed proforma of Second Schedule of Cr.P.C. should be preferably used, as far as possible. However, merely because there is some difference in language or words from the prescribed form in the surety bond executed by the appellant, the same cannot be branded as invalid and does not become unenforceable. In fact, from perusal of the surety bond executed by the appellant, it would appear that all the essential ingredients of Form No. 45 of Second Schedule of Cr.P.C. are covered by the same and there does not appear to be any omission of any material particular therein. Therefore, it does not appear that, the surety bond executed by the appellant was not in forms of prescribed proforma of form No. 45 of Second Schedule. 11. Hence, the above objection raised in this appeal for the first time cannot be sustained. 12. Learned counsel for appellant/surety has in this connection placed reliance on the case reported in (AIR 1936 Nagpur 243) Emperor v. Chintaram, in which it has been laid down that a vague and solvency bond cannot be enforced. It appears that, in the above mentioned case, the surety bond lacked in many material particulars and there was no mention of the Court in which the accused was to appear and that some portions of the printed form was left blank. However, in the present case, the position appears to be entirely different and the surety bond executed by the appellant/surety appears to be fully filled up and does not appear to be lacking in any material particulars. 13. Learned counsel for appellant/surety has also placed reliance on the case reported in ( AIR 1957 SC 587 ) State of U.P. v. Mohammad Sayeed. It appears that, in that case surety bond was executed in favour of "King Emperor Quaiser-e-Hind" and it was held that, since January 26, 1950 no bond executed in favour of Empress of India could be said to be a bond under the Code of Criminal Procedure. However, in the instant case, that is not the position. 14. It appears that, in that case surety bond was executed in favour of "King Emperor Quaiser-e-Hind" and it was held that, since January 26, 1950 no bond executed in favour of Empress of India could be said to be a bond under the Code of Criminal Procedure. However, in the instant case, that is not the position. 14. It has also been contended by the learned counsel for the appellant, that the bond could only be forfeited by the Government in terms thereof and not by the Court. Clearly, the above argument is not tenable. The Courts are set up by and are essential limb of the Government and there appears to be no doubt that the Courts are fully competent to enforce the terms of the bond. 15. In the circumstances, I find that the appellant/surety had executed bond which in substance contains same terms which are provided in Form No. 45 of Second Schedule of Cr.P.C. The case stood transferred to the trial Court after commitment and it was competent to enforce the same in terms thereof. There is no defect in the said form and no column has been left blank. It also does not appear that the accused was not asked to fill up his personal bond. Moreover, above objections were not raised before the trial Court. Undisputably, accused was not kept present by the surety/appellant in the trial Court and therefore, the bond was forfeited, and the impugned order recovery of half the amount of bond under section 446 of Cr.P.C. was ordered. There appears to be no infirmity in the order. 15. In my opinion, the surety/appellant is liable to pay the penalty under the bond executed by him for not keeping the accused present in the Court of Sessions, as has been ordered by it. The impugned order does not call for any interference in this appeal, which deserves to be dismissed. Accordingly, the appeal being devoid of substance is dismissed.